DHANJISHAW RATTANJI KARANI Vs. BOMBAY MUNICIPALITY

JUDGEMENT

(1.) THE judgment first set out the pleadings and discussed issues of facts and proceeded : In the course of the evidence which was led on behalf of the plaintiff, Mr. Maneksha tendered the certified copy of the judgment of the Appeal Court dated September 2, 1941. Mr. Joshi objected to the whole of the judgment going in except the last paragraph thereof which contained the finding and the order of the Appeal Court. Mr. Maneksha relied upon a passage from Sarkar on Evidence, 6th Ed. , at p. 124, which says that "in a suit for damages for malicious prosecution, the order of the Criminal court acquitting the plaintiff is admissible in evidence. Although the reasonings in the judgment and the conclusions drawn from them are not binding or conclusive, yet the judgment may be looked into for the purpose of seeing; what the circumstances were which resulted in the acquittal. " He also cited the case of Rai Jung Bahadur v. Rai Gudor Sahoy (1897) 1 C. W. N. 537 in support of that proposition. In that case the order of the criminal Court acquitting the plaintiff had been put in in order to show that the proceedings had terminated in favour of the plaintiff. It does not appear, however, what were the contents of the order or whether it was possible to sever that part of the order which contained the judgment and the reasoning of the Court from the part of the order which contained the finding and the order of acquittal. THE Court held that the order of the criminal Court acquitting the plaintiff was admissible in evidence, and with that proposition I have not the slightest quarrel. But when it is sought to be argued on the authority of that case that the whole of the judgment of the criminal Court would be admissible in evidence, I am not prepared to accept that argument. It would be only in those exceptional cases where the circumstances which resulted in the acquittal of the plaintiff became relevant that the judgment could be looked at by the Court, but ordinarily it would not be relevant at all and hence not admissible in evidence. Such circumstances might become relevant for instance where the conviction had been procured by the prosecutor by false or perjured evidence. But apart from such circumstances I am of opinion that the judgment or that part of the order which contained the judgment and the reasoning of the Court would not be relevant and admissible in evidence. Mr. Maneksha also relied upon the observations of our Appeal Court in Gulabchand v. Chunilal (1907) 9 Bom. L. R. 1134 (p. 1137) : "Now it appears to us that the existence of the judgment of course is a fact in issue, and the result of the judgment, the order of the Magistrate of acquittal, is also a fact in issue. " In that case, on the record before the Subordinate Judge there was no satisfactory evidence of the absence of the plaintiff at the scene of the offence, but the lower appellate Court treated the judgment of the Magistrate and the evidence given before the Magistrate as evidence in the case and came to the conclusion that the plaintiff was not present at the time when the alleged offence was committed. THE question before the Appeal Court was whether the lower appellate Court was right in so treating the judgment of the Magistrate, and the Appeal Court held that he was wrong in doing so. THE Appeal Court discussed the applicability of Sections 43, 13 and 11 of the Indian Evidence Act; and cited with approval the following passage from Ameer Ali's Evidence Act, Note to Section 43 (p. 427): THErefore, if a party indicted for any offence has been acquitted, and sues the prosecutor for malicious prosecution, the record is conclusive evidence for the plaintiff to establish the fact of acquittal, although the parties are necessarily not the same in the action as in the indictment, but it is no evidence whatever that the defendant was the prosecutor, even though his name appear on the back of the bill, or of his malice or of want of probable cause; and the defendant, notwithstanding the verdict, is still at liberty to prove the plaintiff's guilt. It appears from the judgment that the Appeal Court considered the record of the case and the judgment of the Magistrate only relevant for the purpose of proving the fact of the acquittal, viz. the termination of the proceedings in favour of the plaintiff and for no other purpose whatever. This fortifies me in my conclusion that the judgment or that part of the order which contained the judgment and the reasoning of the Court would not be relevant and admissible in evidence. I am further fortified in this conclusion of mine by a ruling given by B. J. Wadia J. in, the case of Aminuddin Salebhai Tyabji v. Kurban Hussein Abdul Hussein (1937) O. C. J. suit No. 1906 Of 1932. That was an action for malicious prosecution and at the hearing counsel for the plaintiff tendered the judgment of the Chief Presidency Magistrate acquitting the plaintiff in evidence. Counsel for the defendant objected to its being admitted in evidence contending that the judgment was not relevant under the Indian Evidence Act. Counsel for the plaintiff contended that the judgment could be looked at by the Court, evidently relying on the authorities referred to by me above. THE Court, however, upheld the objection and thereupon counsel for the plaintiff only tendered in evidence the order of the Chief Presidency Magistrate's Court, i. e. the last paragraph of the judgment.

(2.) HOLDING as I do that the judgment or that part of the order which contained the judgment and the reasoning of the Court would not be relevant and admissible in evidence except in the exceptional cases where the circumstances which resulted in the acquittal of the plaintiff were relevant-which was not the case here-I would have upheld Mr. Joshi's objection and admitted only the last paragraph of the judgment which contained the finding and order of the Appeal Court in evidence. Mr. Joshi, however, contended that he would rely upon the judgment of the Honorary Presidency Magistrates' Court delivered on June 16, 1941, which convicted the plaintiff, as evidence on which I might find that there was reasonable and probable cause for the prosecution.

(3.) THIS position has, however, been doubted by Winfield in his Law of Torts, (2nd Edn. ), at pp. 670-671, where he states: A reversal of the accused's conviction by a higher tribunal was held in Reynolds v. Kennedy to make the action inapplicable. The court seems to have held that the original condemnation showed that there was foundation for the prosecution and that its reversal did not entitle them to infer malice. But in the recent case of Herniman v. Smith [1938] A. C. 305, where the Court of Criminal Appeal had quashed a conviction of Herniman in the Court below and Herniman sued Smith for malicious prosecution, no question seems to have been raised either in the Court of Appeal or in the House of Lords as to the effect of upsetting a conviction on appeal. Herniman lost his action on the ground that Smith at the time that he prosecuted Herniman had, on all the facts then before him, reasonable and probable cause for doing so. THIS appears to be a much wiser way of treating the matter than to hold that, if a man has once been convicted, then the isolated fact of the conviction always shows that the prosecutor had reasonable and probable cause ; for in truth he may have had none whatever and may have secured the conviction wholly through his own fraud and perjury, and in such circumstances it would be queer law if he were allowed to snatch at the fact of conviction as giving him reasonable and probable cause where he had none before. Quashing of the conviction is, however, relevant to the termination of the prosecution in the plaintiff's favour, and, if it were quashed on the ground of fraud or perjury of the defendant, it might be evidence of malice. Winfield has, however, not referred to the observations of the Court of Exchequer in Sutton v. Johnstone, above set out, and has further based his observations on the absence of any question as to the effect of upsetting a conviction on appeal having been raised either in the Court of Appeal or in the House of Lords in the case of Herniman v. Smith. On a perusal of that case one finds that the main question before the House was whether there was evidence on which the Judge could leave any question to the jury and whether on the whole of the facts on record he should have decided that there was no want of reasonable and probable cause and should not have left to the jury the first two of the questions which he did leave to them. It appears that in that case there was abundant material on the record which was sufficient to enable the Court to come to the conclusion that there was no reasonable and probable cause for the prosecution and it must have been because of that that no question was raised either in the Court of Appeal or in the House of Lords as to the effect of upsetting the conviction on appeal. Moreover Winfield himself goes on to say in the passage cited above that the conviction might have been secured by the prosecutor wholly through his own fraud and perjury and in such circumstances it would be queer law if the isolated fact of conviction could be considered as giving him reasonable and probable cause for the prosecution. These very observations support the position as laid down in Halsbury's Law of England, p. 12, para. 13, note (b), cited above, that the fact of a conviction subsequently reversed would be prima facie and not conclusive evidence of reasonable and probable cause for the prosecution, and that, I take it, is the position in English law.